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CRIMINAL CODE OFFENCES - Sexual offences, public morals, disorderly conduct and nuisances - Sexual offences

Thursday, February 14, 2019 @ 1:44 PM  

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Appeal by the Crown from a judgment of the Ontario Court of Appeal affirming the acquittal of Jarvis. Jarvis was charged with voyeurism contrary to s. 162(1)(c) of the Criminal Code after he used a camera concealed inside a pen to make video recordings of female students at the high school where he was a teacher. Most of the videos focused on the faces and upper bodies of female students, particularly their chests. The trial judge was not satisfied that Jarvis had made the recordings for a sexual purpose and therefore acquitted him. The Court of Appeal was unanimously of the view that the trial judge had erred in law in failing to find that Jarvis had made the recordings at issue for a sexual purpose. The majority however found that the students recorded were not in circumstances that gave rise to a reasonable expectation of privacy when they were recorded. Jarvis’s acquittal was affirmed. The only issue before the Court was whether the students recorded by Jarvis were in circumstances that gave rise to a reasonable expectation of privacy. It was no longer in dispute that Jarvis surreptitiously made video recordings for a sexual purpose.

HELD: Appeal allowed. Circumstances that gave rise to a reasonable expectation of privacy for the purposes of s. 162(1) of the Criminal Code were circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred. The inquiry into whether a person who was observed or recorded was in such circumstances took into account the entire context in which the impugned observation or recording took place. Sexual purpose, as an element of the offence in s. 162(1)(c), had to be established. The concept of “reasonable expectation of privacy” played a central role in the jurisprudence on s. 8 of the Canadian Charter of Rights and Freedoms, and Parliament had to be understood as having chosen the words purposefully and with the intention that the existing jurisprudence on this concept would inform the content and meaning of these words in s. 162(1)(c). A number of principles established by the jurisprudence were relevant here. First, determining whether a person could reasonably expect privacy in a particular situation required a contextual assessment that took into account the totality of the circumstances. Second, privacy was not an “all-or-nothing” concept. Simply because a person was in circumstances where she did not expect complete privacy did not mean that she waived all reasonable expectations of privacy. Third, this concept encompassed a number of related types of privacy interests. Whether a person reasonably expected privacy was necessarily a normative question that was to be answered in light of the norms of conduct in our society. Whether a person could reasonably expect not to be the subject of a particular type of observation or recording could not be determined simply on the basis of whether there was a risk that the person would be observed or recorded. Because Jarvis’ videos were of teenage students, were recorded by their teacher in breach of the relationship of trust and of a formal school board policy, were shot at close range, were of high quality and were focused on the bodies of students, Jarvis acted contrary to the students’ reasonable expectations of privacy. The Court entered a conviction and remitted the matter for sentencing.

R. v. Jarvis, [2019] S.C.J. No. 10, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, C. Gascon, S. Côté, R. Brown, M. Rowe and S.L. Martin JJ., February 14, 2019. Digest No. TLD-February112019011-SCC